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July 20, 2005
The Largest Battle Of The Roberts Confirmation War

I predict that, despite the mostly-pleasant sounds wafting from Washington circles in the past fourteen hours since George Bush made John Roberts his first Supreme Court nominee, we will see a highly contentious public battle over his confirmation. Senators Leahy, Schumer, Kennedy, and Durbin signaled in muted tones that they have no intention of treating Roberts expeditiously, and instead have emphasized that they will treat this confirmation as "starting from scratch" -- which, as Jon Cornyn correctly deduced, presaged obstructionist tactics.

But that only speaks to tactics. The ammunition for the Democrats will prove too seductive to refrain from firing, and the largest battle will actually return them to a favorite accusation against the Bush administration: their conduct of the war on terror. Last week, Roberts joined in a unanimous decision to affirm the jurisdiction of military tribunals in processing terrorists detained overseas, a decision that has a solid basis in law but which horrified those who want to return counterterrorism to the realm of law enforcement. Roberts did not write the opinion for Hamdan v Rumsfeld, but joined in its conclusions.

Slate fired the opening salvo on this battle with an article by Emily Bazelon, in which she implies that Bush nominated Roberts as a quid pro quo for writing him a blank check on detainees:

Roberts may indeed turn out to be a wise, thoughtful, and appealing justice. Tonight when Bush announced his nomination, Roberts talked about feeling humbled, which won him points on TV. But an opinion that the 50-year-old judge joined just last week in the case Hamdan v. Rumsfeld should be seriously troubling to anyone who values civil liberties. As a member of a three-judge panel on the D.C. federal court of appeals, Roberts signed on to a blank-check grant of power to the Bush administration to try suspected terrorists without basic due-process protections. ...

This tribunal isn't like the courts-martial that are used for prisoners of war. It goes by rules that cut back the rights of defendants even more drastically than the tribunal that the United States has helped establish in Iraq to try Saddam Hussein has. Hamdan has no right to be present at his trial. Unsworn statements, rather than live testimony, can be presented as evidence against him. The presumption of innocence can be taken away from him at any time; so can his right not to testify to avoid self-incrimination. If Hamdan is convicted, he can be sentenced to death.

Bazelon goes on to construct a technical argument, one that has a huge flaw in its reliance on the Geneva Conventions -- the fact that Hamdan doesn't qualify for treatment as a POW. That formed a crucial basis for the DC circuit court. Bazelon wants to allow terrorists to disregard Geneva Conventions -- in fact, their tactics and strategies are the antithesis of what the GCs established -- but hold the US unilaterally responsible for treating their detainees to the highest standards of the treaties, even though they explicitly do not apply to non-signatories. Bazelon's argument for civil rights and civil trials for terrorists captured abroad in civilian garb holds little coherence or factual support. It's based purely on emotion and moral equivalency.

However -- and this is highly important -- this decision allows the Democrats to once again pick up the Gitmo thread. They can use Hamdan to rhetorically tie Roberts to alleged abuses at Guantanamo Bay and the abuses at Abu Ghraib. In short, they will use Roberts as a stand-in while they spend their time railing against the war and its conduct. Two of the war's most rabid and incoherent critics, Ted Kennedy and Dick Durbin, sit on the Judiciary Committee. Roberts' confirmation hands them a two-for-one opportunity that they will not refuse.

PFAW, NARAL, and NOW will beat the Roe drum, but that question will provide few fireworks. Watch for the Hamdan hammer to swing over and over again during the confirmation process.

UPDATE: My friend Paul at Power Line asks, "Is it really smart to attack Roberts for not voting to confer more legal process on bin Laden's associate?" Heck no, it's not smart -- but that's really never been a threshold for Kennedy, Durbin, and Schumer. Don't expect Hillary Clinton to join in on this topic. She, at least, is smart enough to avoid the blowback this will create.

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Posted by Ed Morrissey at July 20, 2005 12:00 PM

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